Developments in Geopolitics – The End(s) of Judicialization?

By Phillipe Sands, Professor of Law and Director of the Centre on International Courts and Tribunals at University College London

Note: The Final Lecture at the ESIL Annual Conference 2015, organised by PluriCourts 10-12 September, was held by Professor Phillippe Sands. This blog post is a summary of his lecture, as prepared by the Editors of EJIL: Talk! and reviewed by Professor Sands. The original blog post can be read here, and the full lecture can be viewed here.

In the summer of 2014 I spent three weeks in The Hague, in the company of a man who was 100 years old. Professor Vladimir Ibler, who was born in 1913 in Zagreb, was one of my co-counsel during the hearings in the arbitration proceedings between Croatia and Slovenia, heard in the Peace Palace. Each morning he and I walked slowly up the central staircase of the Peace Palace, and then down it later in the afternoon: past the statue of lady justice, to and from the Japanese room, where the hearing took place. Professor Ibler, who was diminutive in height but certainly not in presence or character, would muse about the state of the world, of international law, and of international courts. “When I was born there were none”, he said to me, “and now there are so many that I cannot keep up with them all. What are they all for? What do they all mean?” The questions were never answered of course, but from his cheery disposition I always felt he retained a sense of hope. A centenarian who lived a life that was touched by Emperor Franz Josef, Hitler, Stalin and Tito was easily able to seize on the possibility of courts as an alternative to war, which is of course the principal end of judicialization. He was hopeful too that Croatia and Slovenia would finally be able to resolve their dispute, by arbitration proceedings under the auspices of the Permanent Court of Arbitration (PCA).

Yet he also sounded a note of caution. I interviewed him in June 2014 more formally for a profile I was asked to write for the Financial Times magazine. “I learnt in my life not to come to fast conclusions”, he told me. “I was very happy in a lawyers office in Zagreb from 1937 to 1939, working with Mr Korsky, and then the Nazis just shot him. I think that being in a lawyer’s office you can make certain conclusions about people and about human relationships, and you can learn certain things. And what I learnt is not to be very quick to make conclusions, but reflect all the time.” Wise advice from a man who had reached the age of 100.

Was it a good idea to refer the dispute between Croatia and Slovenia to an international arbitral tribunal, I asked. “Yes”, he replied, but added: “What I am sceptical of is some of the judges that were appointed to the court, I am not entirely convinced that the tribunal has been totally independent.” He paused. “It seems there are some invisible forces. There are justices and there are injustices.” Recent events have caused me to go back to that conversation.

Against that background, what are we to make of our current judicial arrangements, and the manner in which they function? We have today far more international courts than Professor Ibler could ever have imagined. When he reached the age of retirement – in 1978 – there was no WTO Dispute Settlement Body; no ITLOS; no ICC, ICTY or ICTR; no internationalised criminal courts; and the PCA was moribund, if not dead. My first teacher in international law, back in 1980, passed over the PCA as a historical footnote, but today it has around 100 cases including a number of inter-state cases – in a sense, the PCA offers hope for all institutions. Yet by 1997, just two decades later, when Cesare Romano, Ruth Mackenzie and I established the Project on International Courts and Tribunals, it was as though we were awash with these bodies and their cases. Today it is impossible to keep up with the totality of all that is going on, and that of course has enormous consequences, not least the emergence of the fine Pluricourts Project in Oslo, and the iCourts project nearby.

For all of our work and effort, it has to be said that it becomes ever more difficult to step back and identify trends and themes for the whole. Each court and tribunal is unique, with its own rules, composition, working methods and cases. Invited to address “the end(s) of judicialization”, I am somewhat hesitant to draw any sort of broad conclusions. It is a galaxy of a thousand – or more – points of light.

One thing is clear: all of these courts are delicate, fragile creatures. We take national courts as points of comparison, but they have often had centuries to mature. The distinguished English legal historian Professor Sir John Baker would sometimes tell me that my world of international courts today equates roughly to the situation that English courts were in in the late 15th or early 16th century. This comparison allows us to reflect on some of the things that we get excited about in a more contextualised way. I think the truth is that we are engaged in a project that will extend over hundreds of years, and we are only at a very early stage of these developments. The idea that courts and law might supplant politics and power truly came to the fore really only in 1945, with the start of the Nuremberg trials. In the scheme of things, the 70 years that have passed since represent a remarkably short period of time. We can, then, permit ourselves to have lower expectations, although that does not mean that we should have no expectations, or that matters cannot be improved.

Subject to the caveats above, one can say a number of things regarding the “end(s) of judicialization”. It might be said that there are at least three such ends, although two are only ever classically referred to. First, as Hersch Lauterpacht put it, the “original and primary purpose was to decide disputes between States”. That is a limited end, and one that has evolved as other international actors have emerged, including individuals, corporations, and international organisations. Our system is no longer just about States, although they remain very significant. The second end of judicialization is a broader role for international adjudication, a vehicle to develop the law and to reflect the very idea of the international law – a means of gradually beefing up the content of their rules and their effects.

Yet there is a third end of judicialization for these courts: they are themselves now social actors who contribute to evolutions in the state of human consciousness. The mere fact that they now exist and function supports the idea that there is an alternative to the unlimited exercise of power, or the possibility of an end to crime. This is of course partially illusory, as the existence of the ICC makes clear. The current problem of individuals trying to reach countries of the EU shows the limits of the law and the rule of law. Yet it is also true that some important changes of public consciousness have been effected by the activities of international courts. For example, the decision of the ECtHR in Smith and Grady v UK (1999), in which it found that the investigation into and subsequent discharge of personnel from the Royal Navy in the UK on the basis they were homosexual was a breach of their Article 8 ECHR rights, was a catalytic jurisprudential moment. It is a judgment that has contributed to – if not caused – a transformation of public views (in Europe at least) on gay marriage and related matters. Courts can and sometimes do really make a difference. Whatever problems exist, we must not take our eye off this reality.

Turning to the end of judicialization itself, it seems hard to envisage. International courts are now a settled part of the international and domestic political processes, and they seem to be here to stay. There will be ebbs and flows, and the direction will change. There will be backlashes, departures and disappearances. There will be questions about arbitration as opposed to permanent courts, and mutterings about fragmentation. There will be questions too about competition between courts, whether it’s a good or bad thing. But international courts will not go away.

Against this background, summing up the current state and perspectives of international courts and tribunals is not easy. However, we can survey the landscape and consider certain developments that might raise an eyebrow or indicate future issues. I will briefly touch on a few institutions to give a sense of the kind of things we ought to be thinking about, drawing from my own experiences.

Firstly, the ICC. For the first time, the question has entered my mind: did we create an ICC too early? It is plainly a problem institution. The causes of that are manifold, but one sees very real and legitimate concerns. For example, every person who has been indicted is African or black. That sends a very troubling signal that we must address. Why no action in relation to the crimes of others, in Afghanistan and Iraq, for instance, of torture and rendition and related matters? We have seen the consequences, in relation to the Kenya case and also Sudan’s President Al Bashir, along with the consequential resolutions adopted by the African Union. We have to recognise the validity of an argument that says the ICC as it functions reflects a form of neo-colonialism. We cannot just run away from such perceptions.

It is commonplace too to argue the ECtHR is in crisis, both in relation to its massive backlog and to its perceived undue intervention in some controversial matters, including prisoners’ voting rights in the UK , and a decision effectively deeming illegal Spain’s prison terms as applied to ETA members. The UK’s dominant political party has a majority of its parliamentarians who seem to want to leave the ECtHR, and whilst the judgments they focus on do not particularly trouble me, we have to deal with this reality. The parallel arguments made by the present leadership in the UK and Russia are extremely worrying. Further, the Council of Europe comprises two categories of States: those that have properly functioning judicial systems, and those that do not, a reality we seem not to want to address. The ECtHR has to straddle the totality of the Council’s membership, and so has to get involved in matters that might not be considered the most egregious examples of human rights abuses. This raises the question of whether it was a mistake to abandon the Commission, which screened out a lot of cases and effectively left the ECtHR to deal with the most serious, grave human rights issues, ones that raised real threats to the wellbeing of Europe. Again, we have to confront the reality of this situation, and if we have fallen into error we must be willing to address that.

Turning to the ECJ, the recent Advisory Opinion on EU ratification of the ECHR – an entirely unpersuasive opinion – causes me tremendous difficulty, because it looks as though the ECJ is simply protecting its own turf: an expression of self-interest intended to maintain a degree of judicial monopoly. The ends of judicialization here essentially become a story of survival, a tale of one institution protecting itself from the activity of another. Again, we have to have the gumption to challenge what is actually going on.

Next, there are many who think that the whole system of Investor State Dispute Settlements has been “captured”, not least by lawyers and law firms. As an ICSID arbitrator I see the kinds of fees that are charged for small, relatively insignificant cases: legal fees that run to the tens of millions of dollars. Again, we need to look at those issues. We also need to address the deplorable practice of the same individual sitting as arbitrator in one case and acting as counsel in another, giving rise to situations in which you might find yourself deliberating with your fellow arbitrators in the knowledge that one or more of them is actually litigating the very point that you are seeking to write an award on. That is unacceptable. The ends of judicialization in this context seem to be prioritising the interests of certain stakeholders. This is perhaps not a popular thing to say, but we have to address the reality of what is happening.

The ICJ currently has the strongest bench it has had in years, with an opportunity to enhance its situation and position. And yet it too must surely look at some of its own practices, which have not been updated for years. The standard applied by the court to the issue of independence, for example, and the circumstances in which a judge can and cannot sit in a case, addressed in the Advisory Opinion on the Wall and then relied upon in the Annex VII Arbitration Proceedings between Mauritius and the UK. This raises fundamental concerns (can it ever be right that a judge or arbitrator sits on an appointments panel to select the legal adviser of a state that is appearing before him?). The principal judicial organ of the UN appears to have the lowest standard in the world for testing judicial independence, yet it should have the highest. Related to this is the question of extra-curricular activities of ICJ judges: why is the ICJ apparently the only permanent international court in the world where judges are able to sit and act as arbitrators, and keep the fees? That is extremely problematic in terms of independence and its perception. One has to ask how others perceive the idea that a judge may accept appointment by a party. It is not about actual bias, but about perception and improving standards. One may perhaps be able to understand sitting as president (not a party-appointed member) to a tribunal, but even then how can it be that a judge who has a permanent position and is paid a full-time salary does not hand over the arbitrator’s fees to the UN (as I believe happened when the ICTY allowed a judge to sit in another case, on the one occasion I know of)?

Which brings me to the PCA. As mentioned, the PCA was moribund when I started studying international law. It has had a remarkable transformation over the past two decades. Indeed, things at the PCA had been going swimmingly until recently. However, two Annex VII cases are now underway in which Russia and China – very significant countries – have decided not to participate. This raises serious concerns. There is one other recent development that must also be addressed, and that is the case of Croatia v Slovenia. I was counsel for Croatia until it withdrew from proceedings, so I am not independent, neutral or objective on the matter. I will limit what I say to publicly available information.

It seems to me that the developments of the summer are like a missile that goes to the heart of the international system of justice. The case was brought by an arbitration agreement between the two countries after a long-standing dispute. The written pleadings closed in spring 2014, with hearings held in May and June 2014. In February 2015 an incident occurred which gave rise to some concern: the Slovenian Foreign Minister made a statement in which he suggested that he had been privy to the confidential deliberations of the Tribunal. The Tribunal was alerted to such statements, and on 5 May wrote to the parties, noting that it was “seriously concerned by the suggestion that one Party would have been privy to confidential information related to the Tribunal’s deliberations”. The Tribunal then expressed the understandable view that “safeguarding the confidentiality of the deliberations until the issuance of an award is a matter of highest priority” – indeed, I would add, it goes to the very essence of “judicialization”, premised as it is on the independence of the adjudicators from the Parties. The Tribunal took note of “Slovenia’s assurance that it has not received any information whatsoever as to any aspect of the outcome of the arbitration”, and stated that it itself had “examined the arrangements that it has put in place to ensure that no confidential information may be disclosed”. The Tribunal concluded that it “is therefore confident that no information about the likely outcome of any aspect of the arbitration has been disclosed.”

And that, we expected, was the end of the matter. Until 22 July, when a Serbian newspaper published the transcripts of what purported to be telephone conversations between the Agent of Slovenia and Slovenia’s party-appointed arbitrator, revealing extraordinary information about the deliberations. The transcripts were incredibly detailed, showing a two-way process in which the arbitrator gave a great deal of information to the Agent and also appeared to be acting as a conduit for the views of Slovenia.

The following day, the Agent and the arbitrator both resigned. That was addressed in a press release by the PCA, which included an extremely unfortunate line, as follows: “Once reconstituted, the Tribunal intends to resume its deliberations in the present arbitration without delay.” This has been interpreted by some as an indication of a desire for the proceedings to continue. Nobody who has read the transcripts (published in the Serbian newspaper, and elsewhere) can sensibly argue that that case could simply continue under that Tribunal, and the statement in the press release reflects a failure to recognise the enormity of what had happened. The episode reminded me of the 1998 Pinochet proceedings, where the House of Lords for the first time in history found itself having to set aside one of its own judgments (because one of the judges was discovered to have had an undeclared connection with Amnesty International, which had intervened in the proceedings as an amicus). It did so in order to be seen to be absolutely clean. I know that to have been a highly painful experience for the judges involved, and yet it was plainly the right thing to do, to protect the integrity of the system as a whole. The Law Lords sat again, and delivered a new judgment in 1999. In deciding how to proceed the paramount interest must be the safeguarding of the system as a whole.

Croatia wrote to the Tribunal to say that it considered that the entire arbitration process had been tainted, and to ask the Tribunal to suspend the proceedings. Five days later, Slovenia appointed a new arbitrator, the current President of the ICJ. This was a striking appointment for many reasons, not least because under the Arbitration Agreement the President of the ICJ is the appointing authority in the event that the parties cannot agree on the appointment of the independent arbitrators. The error was quickly corrected, and on 3 August the ICJ President resigned from the Tribunal. Croatia’s party appointed arbitrator also resigned. This left three arbitrators sitting. Slovenia has announced that it will not appoint a new arbitrator, leaving it to the Tribunal’s President to do so, and one assumes that the President will also have to decide what to do about Croatia’s non-appointment of an arbitrator. Croatia formally informed the Tribunal that it ‘cannot continue the process in good faith’ and that it had told Slovenia of its intention to terminate the Arbitration Agreement for material breach (31 July). Slovenia says the case can and must go on. That, as far as I know, is where matters remain [the President of the Tribunal has since then appointed two new arbitrators, and the Tribunal will now decide what course to follow].

It is difficult to fully describe one’s reaction to such developments, a near existential crisis that was extraordinarily painful to live through. The independence of the arbitrator or judge is at the heart of the system in which we are involved. The fear is not that the episode will bring to an end this long arbitral process, but that it will cause tremendous harm to the system of international arbitration. I do not see how the arbitration can possibly continue, and what is now needed is a transfer to another procedure. The ICJ is the most logical body, although Croatia will have concerns regarding Slovenia’s appointment of the ICJ President as its replacement party appointed arbitrator.

The real concern of course is that this may not be an isolated incident. From my own experience I know that things do go on that should not, even if not necessarily to this extent. What was striking here was the scale and the timing, over an apparently extended period. I know from my own experience that an agent in a case may come in and share a conversation that he or she has had with a particular person sitting on a court tribunal. This causes a tremendous ethical difficulty and raises a fundamental question as to the standards to be applied. The hope must be that this terrible episode will serve as a wake-up call to the community to redouble its efforts at applying the highest standards. We should use this moment to explore our own practices and the whole appointment process in an honest and constructive way.

We also need to be aware of the nature of our community: it is small, closed, and inward-looking. It can be delicate and embarrassing to talk of certain things, such as this recent case, and I note that no one has done so publicly during this conference (privately is another matter). To raise an issue regarding the actions of distinguished, famous, international lawyers – particularly for younger members of the academic community – can be daunting. As such, those of us of a more advanced age have a particular responsibility to do so, and we must avoid our own vested interests. I have long thought that there is a tension in my own activities: between the scholar on the one hand, and the practitioner on the other. It is difficult to critique the court – or the judges – before which you actually appear without fearing that you may harm your own prospects or those of the state or entity you act for. I understand that reluctance, but we must overcome it. We need to take the opportunity to discuss these issues honestly but constructively, to enhance and to improve the system.

And so I return to Professor Ibler: “I learnt in my life not to come to fast conclusions”, he told me. I take heed of his warnings and do not come to any fast conclusions. Professor Ibler did not live to become aware of what happened in the case in which we were involved, sadly he passed away this summer before the events became public, in his 102nd year. Yet he left us with a sense of optimism, and we too should draw from that. Let us not run away from the hard, dirty and bad things that happen in our world. We should confront them, but we should do so with courtesy, balance and propriety. We must not be starry-eyed about any courts, for we will make the system that we care about weaker if we fail to confront these issues in an honest way. We must debate and discuss them. That is what Professor Ibler would have said with his 100 years of experience.